The inadvertent migration of proportionality and the role of Ex-Ante constitutional review in the Vietnamese lawmaking process

Abstract

ABSTRACT The ascent of proportionality is a strong testament to the universalist movement in modern constitutional law. The proportionality analysis has become a prominent jargon for judges in navigating clashes between fundamental rights and competing interests. This article traces the inadvertent migration of the proportionality principle in terms of human rights limitation clause into Vietnam’s constitutional sphere and how it plays out in its lawmaking process as a type of ex-ante constitutional review. It argues that although not explicitly endorsed textually, the constitutional adoption of the human rights limitation clause ostensibly lends an analytical framework for stakeholders to normatively scrutinise draft laws in light of the proportionality principle. It further implies the practical working of proportionality analysis outside the courts, especially in the context of one-party dominant Vietnam. Despite its primitive form, much room is left for the development of a more structured proportionality analysis. The case of Vietnam confirms the idea that proportionality is a normative reasoning for constitutional review and its aspirational value in the age of global constitutionalism.